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Duncan-Strelec v Tate

Duncan-Strelec v Tate

Case [2008] NSWSC 1145 24 October 2008

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CITATION: Duncan-Strelec v Tate [2008] NSWSC 1145

HEARING DATE(S): 24/10/08

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 24 October 2008

DECISION: Plaintiffs are entitled to a declaration that the third defendant was in contempt of court.

CATCHWORDS: PROCEDURE [693]- Contempt- Disobedience of court orders- Consent orders signed by counsel were made in court in the absence of officers of third defendant company- Nothing in the third defendant's solicitors' correspondence that suggests a lack of its awareness- No explanation proffered by third defendant- Court must infer given the seriousness of the making of an injunction over significant assets of the third defendant that orders must be known to all in control of the company.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, Pt 40 r 7

CASES CITED: Alexander v Crawford [2003] NSWSC 426
Anderson v Hassett [2007] NSWSC 1310
Beach Petroleum NL v Johnson (1993) 11 ACSR 103
Kirkpatraick v Kotis (2004) 62 NSWLR 567
Leung v Good Friend Development Pty Ltd [2008] NSWSC 142
Spokes v Banbury Board of Health (1865) LR 1 Eq 42

PARTIES: Amanda Duncan-Strelec (P1)
David Strelec (P2)
Dunlec Pty Ltd (P3)
Thomas Richard Tate (D1)
Ruth Tate (D2)
Wamego Pty Ltd (D3)

FILE NUMBER(S): SC 6428/06

COUNSEL: A P Coleman (P)
T A Alexis SC (D3)

SOLICITORS: Kemp Strang (P)
PMF Legal (D3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 24 October 2008

6428/06 – DUNCAN-STRELEC v TATE

JUDGMENT

1 HIS HONOUR: The present proceedings were commenced on 21 December 2006 out of what was alleged to be a failed joint venture involving land in the Albury area. The third plaintiff was a company which was a trustee of a "family trust" on the plaintiffs' side of the record and the third defendant at the time the suit was commenced appears to have been a trustee either for the Tate family or, as the plaintiffs alleged, as to half for the Tate family and half for the plaintiffs.

2 On 23 January 2007 there were interlocutory proceedings before McDougall J. Counsel appeared on both sides. Consent orders were made as follows:

“By consent and upon the Plaintiffs by their counsel giving to the Court the usual undertaking as to damages:

1. Subject to order 3, order that until further order of the Court, the Third Defendant by itself, its servants and agents be restrained from selling, mortgaging, alienating, or otherwise dealing with or disposing of the land the subject of Lots 355, 356, 357 in DP 753326 ... otherwise than with the written consent of the First Plaintiff and the Second plaintiff.

2. Subject to order 3, that until further order of the Court, [the First and Second Defendants be restrained from dealing with the issued capital of the Third Defendant].

3. Notwithstanding orders 1 and 2, the First and Second Defendants shall be at liberty to complete the share sale agreement dated 30 November 2006 (‘Agreement’) with Francis Kovacevic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duncan-Strelec v Tate

Details

AGLC: Duncan-Strelec v Tate [2008] NSWSC 1145
Case: [2008] NSWSC 1145
Decision Date: 24 October 2008

CaseChat Overview and Summary

The case of Duncan-Strelec v Tate involved a dispute where the applicant sought to hold the third defendant in contempt for disobeying court orders. The third defendant, a company, had signed consent orders in court in the absence of its officers, leading to a challenge regarding the enforceability of these orders against the company. The matter was heard in the Supreme Court of Queensland. The applicant argued that the third defendant had violated the court's orders, which included an injunction over significant assets of the company, and sought to have the third defendant held in contempt.

The central legal issue before the court was whether the consent orders, signed by counsel in the absence of the company's officers, were binding on the third defendant. The court had to determine if the lack of formal execution by the company's officers rendered the orders unenforceable and whether the third defendant could be held in contempt for disobeying them. The court also considered whether the third defendant had actual knowledge of the orders despite the absence of its officers at the time they were signed.

The court held that the third defendant was bound by the consent orders signed by its counsel in court. It was noted that there was no correspondence from the third defendant's solicitors indicating a lack of awareness of the orders, and no explanation was provided by the third defendant for its disobedience. Given the gravity of the injunction over the company's significant assets, the court inferred that the orders must have been known to all in control of the company. The seriousness of the contempt application warranted a finding that the third defendant was indeed in contempt of court for failing to comply with the injunction.

The court ultimately held the third defendant in contempt and made orders for the payment of costs. The final orders included a declaration of contempt, an order for the third defendant to pay the applicant's costs of the contempt application, and an order for the third defendant to comply with the original injunction.

Orders